Judges have flexibility on probation violations

Michael W. Hoskins
January 1, 2007
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If someone violates their probation, trial courts have the authority to modify a part of those probation terms and can add new conditions as they see necessary.

The Indiana Supreme Court ruled today in Russell Prewitt v. State of Indiana, No. 10S04-0707-CR-294, arising out of Prewitt's previous attempted cocaine possession conviction and subsequent probation starting in mid-2005. The state moved to revoke his probation twice within four months for alleged violations, and the trial court determined Prewitt had violated the probation. Clark Superior Judge Cecile Blau ordered that Prewitt serve two years of his previously suspended six-year sentence and that he receive post-incarceration treatment at Richmond State Hospital as a new condition of probation.

On appeal, Prewitt argued the trial court didn't have the authority to both order a portion of the previously suspended sentence and to modify the conditions. He relied on the word "or" within Indiana Code 35-38-2-3(g), which spells out the three options courts have in dealing with probation violations by continuing probation without modifying for enlarging the conditions; extending that period up to a year; "or" ordering execution of all or part of the sentence suspended at initial sentencing.

Supreme Court justices cited past caselaw and legislative intent from other statutes in determining what's allowed.

"We cannot postulate a reason the legislature would grant trial courts discretion to combine conditions when first placing a defendant on probation but not when sentencing a defendant after a probation violation," Chief Justice Randall T. Shepard wrote. "We do not perceive the word 'or' in this statute as reflecting a legislative decision to put revocation decisions in a straightjacket."

The court noted judicial flexibility serves the public interest by giving judges the ability to order sentences they deem to be the most effective and appropriate for individuals.

Justices also determined that Prewitt's sentence was not an abuse of discretion by the trial judge and affirmed the trial court judgment.

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